Cottrill v. Ranson
| Decision Date | 15 July 1997 |
| Docket Number | No. 23374,23374 |
| Citation | 200 W.Va. 691,490 S.E.2d 778 |
| Parties | Lestel COTTRILL, Petitioner Below, Appellant, v. B.L. RANSON and Rosalie E. Ranson, his Wife, and the Board of Education of Putnam County, a Corporation Created by West Virginia State Law, Respondents Below, Appellees. |
| Court | West Virginia Supreme Court |
3. One of the underlying purposes of Code, 18-5-7 is to assure rural property owners that, if they convey a portion of their land to be used for school purposes and if school operations on the property later cease, the original grantor of the school property, his heirs or assigns, may repurchase the school property to prevent it from passing into the hands of a stranger and, thereby, protect the parent tract from being damaged. In order to accomplish this purpose, whatever right the original grantor has to repurchase the school property will pass from the original grantor to that grantor's heirs or assigns of the parent tract so that such heirs or assigns may repurchase the school property and protect the parent tract which they own by virtue of the conveyance from the original grantor.
4. "In order to create an exception or reservation in a deed which would reduce a grant in a conveyance clause which is clear, correct and conventional, such exception or reservation must be expressed in certain and definite language." Syl. Pt. 2, Hall v. Hartley, 146 W.Va. 328, 119 S.E.2d 759 (1961).
5. Syl. Pt. 3, Hall v. Hartley, 146 W.Va. 328, 119 S.E.2d 759 (1961).
Robert W. Friend, Parkersburg, for Lestel Cottrill.
John H. Reed III, Reed & Reed, Hurricane, for B.L. and Rosalie E. Ranson.
The petitioner below and Appellant herein, Lestel Cottrill (hereinafter Appellant), appeals the final order of the Circuit Court of Putnam County entered on July 11, 1995.
[200 W.Va. 694] This order affirmed the circuit court's prior summary judgment order dated August 23, 1994, in favor of the sale and purchase of a piece of property between the respondents below and Appellees herein, the Board of Education of Putnam County (hereinafter the BOE) and B.L. and Rosalie E. Ranson (hereinafter the Ransons). For the following reasons, we affirm the final order of the circuit court.
Appellant and his brother, Otho Vearl Cottrill, owned three parcels of land (collectively referred to as the parent tracts) located in Putnam County, West Virginia. Appellant and his brother owned a joint interest in parcels one and three, while Appellant owned a two-thirds interest and his brother a one-third interest in parcel two. 1 On May 6, 1950, Appellant and his wife and his brother and his brother's first wife, Hattie Cottrill, conveyed by a general warranty deed approximately two acres of property to the BOE for $900. 2 The BOE built an elementary school on the property.
On November 26, 1951, Appellant and his wife conveyed their interest in the parent tracts by general warranty deed to Appellant's brother and Hattie Cottrill. On April 19, 1967, Appellant's brother and his second wife, Emma Cottrill, 3 conveyed the parent tracts by general warranty deed to the Ransons. Appellant's brother subsequently died and by will devised and bequeathed all his estate to Emma Cottrill, provided she survived him for a period of sixty days. In the event she did not survive him for a period of sixty days, Appellant's brother devised and bequeathed his entire estate to Appellant.
In 1991, the BOE decided it no longer wanted the property for school purposes and put the property up for auction. Both Appellant and the Ransons sought title to the property pursuant to West Virginia Code § 18-5-7 (1949). 4 In relevant part, this statute provides:
Disposal of School Property; Oil and Gas Leases.--If at any time the board shall ascertain that any building or any land no longer shall be needed for school purposes, the board may sell, dismantle, remove or relocate any such buildings and sell the land on which they are located, at public auction, after proper notice, and on such terms as it orders, to the highest responsible bidder. But in rural communities the grantor of the lands, his heirs or assigns, shall have the right to purchase at the sale, the land, exclusive of the buildings thereon, and the mineral rights, at the same price for which it was originally sold.
W. Va.Code § 18-5-7 (emphasis added). The BOE refused to sell the property to either Appellant or the Ransons until a judicial determination could be made of who was entitled to the property.
Appellant filed a petition with the circuit court requesting, inter alia, that he be given the right to repurchase the property as an original grantor of the property to the BOE and as the heir of the other grantor, his brother. The Ransons, who now have owned the parent tracts for the past thirty years, responded and filed a declaratory judgment action with the circuit court, arguing they should be granted the sole right to repurchase the property because they are the assigns of the parent tracts and neither Appellant nor his brother preserved their rights to repurchase the BOE property in their respective assignments of those tracts. After responses were filed by both the BOE and Appellant, the Ransons filed a motion for On August 23, 1994, the circuit court entered its initial order finding no genuine issue of material fact existed. The circuit court also concluded the Ransons are the "assigns" within the meaning and context of West Virginia Code § 18-5-7 and are entitled to repurchase the BOE property pursuant to that statute. The circuit court, therefore, granted summary judgment in favor of the Ransons.
[200 W.Va. 695] summary judgment. Appellant did not file any opposing affidavit, but a hearing was held on April 7, 1994, at which Appellant testified.
Appellant filed motions with the circuit court "to make specific findings of fact and/or alter or amend its findings and/or judgment or for a new trial." Appellant presented the circuit court with a deed which Appellant asserts gives him a mineral interest in the property owned by the BOE and a photocopy of his brother's will. Appellant attached to the will an affidavit stating that Emma Cottrill did not survive his brother and all interest his brother possessed in any real estate was devised to Appellant. 5
In its order entered on July 11, 1995, the circuit court affirmed its prior order and stated that any issues or facts raised subsequent to the first order were not timely and, even if timely, would not change the ultimate decision. The circuit court found, inter alia, that Appellant failed to provide it with a certified copy of his brother's will and failed to provide documentation to show that Emma Cottrill did not survive her husband for a period of sixty days, which was a prerequisite to make the devise to Appellant effective. Regardless, the circuit court determined Appellant's brother did not have any interest in the parent tracts or the two acres conveyed to the BOE, "with the possible exception of an interest in the minerals underlying the 81 acre tract residue (one of the three 'parent tracts')," and it could not "determine from the evidence presented that the school lot was a part of the 81 acre tract." 6
A.
As we repeatedly have said, Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992). We review a circuit court's decision to grant summary judgment de novo and apply the same standard for summary judgment that is to be followed by the circuit court. Williams v. Precision Coil, Inc., 194 W.Va. 52, 58, 459 S.E.2d 329, 335 (1995) (citations omitted). As we stated in syllabus point two of Williams:
Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.
Syl. Pt. 2, Williams. We will reverse a circuit court's award of summary judgment if there is a genuine issue of material fact to be resolved or if, as a matter of law, the moving party is not entitled to the judgment. 194 W.Va. at 60, 459 S.E.2d at 336. In this case, we find no reversible error. B.
Appellant argues the Ransons are being unjustly enriched by the circuit court's order because an assignment of the right to repurchase the BOE property...
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